Gov. Martin O'Malley, flanked by Lt. Gov. Anthony Brown and religious leaders from around the state, calls for an end to Maryland's death penalty this year. (Capital News Service Photo by Michael Frost)

ANNAPOLIS (Feb. 27, 2009)—While the Senate may help decide the future of the death penalty in Maryland next week, it is the state's attorneys for each county that decide whether to file capital charges.

As a result, whether or not an accused criminal faces the death penalty for eligible crimes may depend more on who the state's attorney is than on the details of the crime, according to the findings of the Maryland Commission on Capital Punishment. In part because of that jurisdictional disparity, the commission recommended repealing the death penalty by a 13-9 margin.

In its final report in December, the commission said that research "conclusively shows that the chances of a State's Attorney seeking and imposing a death sentence differs alarmingly across jurisdictions in Maryland, even when the cases are similar."

That disparity is likely to play a key role as the debate over whether to repeal the death penalty comes to a head in the Senate next week.

Friday, a repeal bill deadlocked 5-5 in the Senate Judicial Proceedings Committee, again failing to get the votes needed to reach the full chamber. None of the committee members changed their votes from two years ago, when similar legislation died in committee.

This year's legislation is nonetheless expected to reach the Senate floor as early as next week, thanks to parliamentary maneuvering meant to force a full debate on whether or not Maryland should repeal the death penalty.

One of the key points of contention is likely to be jurisdictional bias.

The death penalty commission's report highlighted a 2003 University of Maryland study that found Baltimore County state's attorneys were more than 13 times more likely to pursue the death penalty for similar cases than those in neighboring Baltimore. According to the study, the probability of an eventual death sentence was almost 23 times higher for the county.

The study was based on an examination of approximately 6,000 first- and second- degree murders that took place in Maryland between August 1978, when the death penalty was reinstated, and September 1999.

Matthew Campbell, a former prosecutor who served as a member of the commission, told an audience at Hood College in Frederick that the state in effect has "24 unique death penalty policies being implemented at any one time."

But another member of the commission, Scott Shellenberger, state's attorney for Baltimore County, said in testimony before the Senate Judicial Proceedings Committee that it was simply the result of state's attorneys representing the people of their districts. He called this principle "minority local rule," and said that it applied throughout the legal system.

Shellenberger, who took office in 2007, was lead author of the commission's minority report, which was signed by eight of the nine members who voted against repeal.

"In every jurisdiction, there are different sentences for the same crime all across this state," said Shellenberger.

The cases of four of the five men executed since the death penalty was reinstated in 1978 originated in Baltimore County, as did those of seven of the 10 Marylanders legally removed from death row since that time, including Kirk Bloodsworth, who was eventually released from prison on the basis of DNA evidence.

Five men remain on death row, including two from Baltimore County.

To defenders of the death penalty, these small numbers show how carefully the death penalty is imposed in the state. The commission's minority report said that "despite all of the controversy about Baltimore County, only two defendants (Vernon Evans Jr. and Anthony Grandison) now on death row committed their crimes in that jurisdiction, and those two arose from the same incident."

Evans Jr. was issued a stay of execution on Feb. 6, 2006, the very week he was scheduled to die. The Maryland Court of Appeals ruled later that year that the state's lethal injection protocol did not comply with state law, which put a de facto moratorium in place that has remained since.

Some proponents of the death penalty have argued that it can serve as an important bargaining chip, and that, without it, accused criminals have no reason to settle for life without parole. Others, like commission-member Campbell, found that very notion detestable.

"The Supreme Court has made it crystal clear, and prosecutor ethics make it crystal clear that a prosecutor, frankly, should lose his ticket to practice law if he files a death notice with the intention of allowing the defendant to bargain it down to life or life without parole," Campbell said, in Frederick.

Of course, such intentions are difficult if not impossible to prove. Similarly, while prosecutors are sometimes labeled as being "for" or "against" the death penalty, most of their positions are far more nuanced.

Kristy M. Hickman, state's attorney for Somerset County, testified against repeal before the Senate Judicial Proceedings Committee last week despite the fact that she has never sought the death penalty. She cited Eastern Correctional Institute, located in her county, as the reason why.

"The death penalty is needed to punish and deter convicted murderers from killing their guards," she said.

Hickman pointed out that a prisoner can only serve one life sentence, meaning, in effect, that he or she would face no further punishment for killing again.

Prince George's County State's Attorney Glenn Ivey said he believed in using the death penalty when he took office in 2002. During his testimony before the Judicial Proceedings Committee, he said that he had a change of heart during his time in office, particularly because of the effect the process has on the families of victims.

Ivey now opposes the death penalty, calling it "to some extent, a real cruel hoax on the families who are survivors of homicide victims and the public at large."

"I come here as a convert," he told the committee.

For Shellenberger, the people could—and should—have the final say, whether it be in Baltimore County or Prince George's.

"I believe that the citizens elect good state's attorneys who use their good discretion, and I think that that should be allowed," he said.